The
goals of dram shop liability bear a striking resemblance to most
third-party torts  to remove blame from the responsible individual
and get some money from a profitable industry in the process.

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Blame
it on the Bars

By
Erin Murphy

Nothing
gets the plaintiffs bar going like alleged "evil empires"
with deep pockets  big tobacco, gun manufacturers and profitable
corporations are always at the top of the list. Not to be discounted
is the alcohol industry, which has been battling dram shop liability
claims for decades.

Under
dram shop liability laws, a party injured by an intoxicated person
can sue establishments contributing to that persons intoxication.
The possibilities for passing the buck are endless. Take two friends
who go out drinking, get in a fight, and one punches the other.
The injured friend can then sue the bar. Also, most dram shop laws
cover serving alcohol to a minor. Thus in Texas, minors can sue
a drinking establishment for their own injuries sustained while
intoxicated. In other states, dram shop liability extends to serving
the "habitually intoxicated." Accordingly, an alcoholics
family can sue the bar that "let" him squander away the
familys savings.

The
wide variety of dram shop laws across the states suggests that the
extent to which bars may be blamed for a drunken persons behavior
at least gives some states pause. A couple of hold-out states impose
no dram shop liability  most notably Nevada, whose tourist
industry would probably go out of business otherwise. In another
small group of states, such as Alabama, Alaska, and Michigan, liability
is limited to illegal alcohol sales, such as serving minors or known
alcoholics.

However,
the vast majority of states allow for recovery simply when the defendant
knew (or should have known) the customer was intoxicated 
a fuzzy test in application. Imagine the typical weekend hot spot,
where the interaction between the two bartenders serving about thirty
patrons at once rarely amounts to more than a two-word order and
a cursory "thanks." Perhaps patrons could shout "Bud
Light" through a breathalyzer, or walk a straight line from
one end of the bar to other to demonstrate their sobriety. What
of customers who buy multiple drinks at a time? Maybe a few busboys
could be set aside to follow them back to their friends and ask
each one to stand on one foot and recite the alphabet.

Some
states have at least attempted to address this problem through more
exacting tests. Missouris recently revised dram shop law requires
proof that the party demonstrates "significantly uncoordinated
physical action or significant physical dysfunction." In Texas,
a patron must be so obviously intoxicated that he presents a clear
danger to himself and others.

Some
states appear to have abandoned any pretext of fairness. Take Massachusetts,
where a patron exhibiting "loud and vulgar" behavior was
determined to be "visibly intoxicated," and a bar was
sued for serving a customer who left, drank at two more bars, and
then got into a car accident three hours later. In New York, toxicologists
who never saw the "visibly intoxicated" patron are allowed
to give their expert opinions on how anybody that drunk must have
been showing it.

Then
there are the extremes. Under Illinois dram shop law, plaintiffs
can recover after demonstrating: 1) proof of sale of alcohol to
the patron; (2) injuries sustained by the patron; (3) proximate
cause between the alcohol sale and intoxication; and (4) that intoxication
was at least one cause of the third party damages. Notably absent
from that list is that the defendant knew or should have known the
patron was intoxicated, meaning that every person who sold the patron
alcohol, whether or not he was intoxicated at the time, can face
some degree of liability. Thus a savvy plaintiffs attorney
sues not only the local bar where the third party drank himself
silly, but also the popular chain restaurant where he had a few
drinks with dinner. Liability can then extend to casinos and convenience
stores; one Illinois court allowed a lawsuit against a company that
dropped off self-serve barrels of beer at a union picnic.

The
goals of dram shop liability bear a striking resemblance to most
third-party torts  to remove blame from the responsible individual
and get some money from a profitable industry in the process. At
least one can appreciate Illinois courts honesty in stating
that the dram shop act is intended "to place responsibility
for damages caused by intoxicants on those who profit from the sale
of alcohol [and] to protect the health, safety, and welfare
of the people from the dangers of traffic in liquor." After
all, everyone knows the real problem is not the person who has 15
or 20 drinks and then drives himself home, but rather the bartender
who thought the patrons friends were driving him home, or
worse yet, the restaurant that didnt realize it was the starting
point for an all-night bar hop. At least Illinois courts understand
that someone has to protect their citizens from the "dangers
of traffic in liquor"  and it only takes one game at
Wrigley Field to see what a good job theyre doing.

Whether
dram shop liability actually succeeds in increasing responsibility
among establishments serving alcohol is by no means clear, but one
fact is certain. That people arent responsible for their own
behavior when alcohol is involved is a message that no law should
be sending.

Erin Murphy is a Contributing Editor with the Center for Individual
Freedom.